Izvorni znanstveni članak
The obligation cause and related institutes in comparative law
Saša Nikšić
Sažetak
The obligation cause originates from the period of Roman law and it is connected with the stipulation. The stipulation, as one of the most important contracts of Roman law, was of abstract nature. The abstractness of the stipulation was a great advantage for the creditor, but at the same time a great disadvantage for the debtor, because it made impossible to raise various objections by which the debtor could avoid the fulfillment of the obligation from the stipulation. Due to the fact that such a situation was misused by creditors, in the course of time the abstract character of the stipulation was abandoned and in Justinianian law the stipulation was invalid if the reason for taking the obligation was not mentioned or, in other words, if there was no obligation cause.
The French Civil Code was the first codification of modern civil law which accepted the obligation cause as a prerequisite for the validity of contract. However, at the beginning of the 20th century some parts of French law significantly differed from Roman law, and the need for introducing the obligation cause into the range of general prerequisites was seriously questioned in the legal theory. The controversy which arouse about the role of the obligation cause undermined the credibility of this legal institute. This prompted the decision not to include the obligation cause as a prerequisite for the validity of contract into the German Civil Code. However, due to the fact that the obligation cause is deeply rooted in the system of contract law and that it is more or less the characteristic of most contemporary legal systems, the obligation cause has its place in German law as well as in all other Germanic legal systems. The difference in relation to French law lies in the fact that the obligation cause in Germanic legal systems is often a prerequisite for the conclusion of contract. According to some opinions, the obligation cause has been adopted in Germanic legal systems through the institutes of Rechtsgrund and Geschäftsgrundlage. Yet it is not so because Rechtsgrund is not a prerequisite for the validity of contract and other legal transactions, but it is, depending on whether the system of causal, i.e. abstract, acquisition of subjective civil rights is adopted in a particular legal system, a prerequisite for the acquisition of subjective civil rights. Geschäftsgrunlage is not a prerequisite of the validity of a legal transaction, either, but it is still connected with the obligation cause from French law since the areas of application of these legal institutes partially overlap.
In common law legal systems, consideration is required for the contractual obligation to be actionable. This institute, both with regard to the concept and to the function, has a great number of contact points with the obligation clause.
Ključne riječi
obligation cause; contract cause; consideration; Rechtsgrund; Geschäftsgrundlage
Hrčak ID:
5107
URI
Datum izdavanja:
20.6.2006.
Posjeta: 5.218 *